FORMS OF BUSINESS

ORGANIZATION IN THE
UNITED STATES
Unit 33
 Forms of Business Organization
• Sole proprietorship (or the individual
ownership); sole trader
• Partnership
• Corporation
 Factors taken into consideration
• Financial responsibility
• Control of operation
• Possibilities of growth and expansion
• Possibilities of capitalization
• Financial development
 Sole proprietorship
• Business owned by one person
• Owner has relatively unlimited control over
the business and enjoys all the profits
• Unlimited personal responsibility for the
losses, debts and other liabilities
• Small retail stores, restaurants, farms etc.
 Partnership
• Association of two or more persons as co-
owners to carry on a business for profit
• Based upon voluntary agreement of partners
• Profits and losses shared equally unless
otherwise agreed
 Partnership
• Every partner liable without limit to creditors
for debts of the management with equal
authority
• Utilize more capital, labor and skill than sole
proprietorships
 Partnership
• Unlike an incorporated company, a partnership
does not have a legal personality of its own
and therefore partners are liable for the debts
of the firm
• On leaving the firm they remain liable for
debts already incurred; they cease to be liable
for future debts if proper notice of retirement
has been published
 Corporation
• Artificial person created under law and
empowered to achieve a specific purpose
• Formed upon the issuance of a certificate of
incorporation by the appropriate government
authority
 Company formation
• Certificate of incorporation – issued upon the
filing of the constitutional documents of the
company, together with statutory forms and
the payment of a filing fee
 The ‘constitution’ of a company
• Memorandum of association
• Articles of association
 Memorandum of association
• States:
• the objects of the company
• Details of its authorised capital, known as the
nominal capital
 Articles of association
• Provisions for the internal management of the
company (e.g. shareholders’ annual meetings,
extraordinary general meegings, the board of
directors, corporate contracts and loans)
• Structure, procedures and work of the board of
directors
 Company management
• Director: appointed to carry out and control
the day-to-day affairs of the company
• Manager: supervisory control of the affairs of
the company
• Secretary
• Auditors: do not owe a duty to the company as
a legal entity, but to the shareholders, to whom
the auditor’s report is addressed
 Director
• Duty of care: must exercise the care of an
ordinarily prudent and diligent person
• Fiduciary duty: must act in the best interests of
the company and not for any collateral purpose
 Corporation
• The formation of an association that has
corporate personality, i.e. a legal personality
distinct from those of its members
• Such a body can own property and incur debts
• Company members have no liability to
company creditors
• Incorporated company has its own rights and
liabilities and legal proceedings
 Salomon v Salomon and Co.
(1897)
• S converted his existing, successful business
into a limited company, of which he was the
managing director
• S valued his business at $39,000 and received
from the company , in discharge of this sum, a
cash amount, a debenture (an
acknowledgement of debt) and 20,001 $1
shares out of the issued capital of 20,007
 Salomon v Salomon and Co.
(1897)
• S’s wife and five children each held one of the
remaining issued shares
• The company went into insolvent liquidation
within a year with no assets to pay off the
unsecured creditors
• The issue for the courts: was S liable for the
company’s unpaid debts?
 Salomon v Salomon and Co.
(1897)
• the House of Lords, reversing the Court of
Appeal, held that the company had been
properly formed and was a legal person in its
own right, separate from S, notwithstanding
his dominant position within the company
• The company was not S.’s agent and,
consequently, S’s liability was to be
determined solely by reference to the CA 1862
 Salomon v Salomon and Co.
(1897)
• The Act required a shareholder to contribute to
the debts of a company only where he held
shares in respect of which the full nominal
value had not been paid
• S had paid his shares in full by transferring the
business to the company, so he had no liability
to the creditors of the company
 Salomon v Salomon and Co.
(1897)
• The case established that legal personality
would be recognized even when one
shareholder effectively controlled the
company
 Attributes of corporations
• The effects of separate legal personality
include:
• Perpetual life (“perpetual succession”)
• Limited liability
• Transferability of shares
• Access to capital
• Professional management
 Perpetual succession
• Any corporate body has a legal existence
distinct from the person or persons of whom it
is composed
• Its lifespan is not limited by that of its
members and it is therefore said to have
perpetual succession
• It continues to exist until wound up in the
manner prescribed by law
 Limited liability
• Members of companies providing the share
capital cannot be asked to contribute more
than the nominal value of the shares registered
in their names
• The nominal value of the shares or the amount
of the guarantee will appear in the
Memorandum of Association and in the
Annual Accounts
 Transfer of shares
• A transaction resulting in a change of share
ownership. It traditionally involved:
• 1. a contract to sell the shares
• 2. their transfer
• 3. entry of the transferee’s name on the
registrar of members of the company
 Corporate veil
• In cases when the company is used to
perpetrate fraud or acts ultra vires, the court
may ‘lift’ the corporate veil and subject the
shareholders to personal liability
 Legal terms
• Sole proprietorship
• Isključivo vlasništvo; poduzeće s jednim
vlasnikom
• Partnership
• Partnerstvo, ortaštvo
• Corporation
• Trgovačko društvo, dioničko društvo, društvo
kapitala
 Legal terms
• Retail
• Maloprodaja
• Liability
• Obveza (financijska), odgovornost
• Creditor
• Vjerovnik, zajmodavac
• Debtor
• Dužnik, zajmoprimac
 Legal terms
• Artificial person (Br. E.), legal person, legal
entity
• Pravna osoba
• Limited liability
• Ograničena odgovornost
• Transferability of shares
• Prenosivost dionica
 Introduction to Company Law:
Exercise
• Complete the text by using the following
words: agreements, borrow, corporations,
court, debts, dividends, employees, legal,
legislation, liability, limited, objectives,
partnership, profits, property, registered
(x2), shareholders, sole trader, sue
 Exercise
• A company is a ___entity, allowed by ___,
which permits a group of people, as___, to
create an organization, which can then focus
on pursuing set____. It is empowered with
legal rights which are usually only reserved for
individuals, such as the right to____and be
sued, own____, hire____ or loan and
____money.
 Exercise
• The primary advantage of a company structure
is that it provides the shareholders with a right
to participate in the_____, a proportionate
distribution of profits made in the form of a
money payment to shareholders, without any
personal____.
 Exercise
• There are various forms of legal business
entities ranging from the____, who alone bears
the risk and responsibility of running a
business, taking the profits, but as such not
forming any association in law and thus not
regulated by special rules of law, to
the____company with ___liability and to
multinational ____.
 Exercise
• In a ____, members ‘associate’, forming
collectively an association in which they all
participate in management and sharing____,
bearing the liability for the firm’s _____and
being sued jointly and severally in relation to
the firm’s contracts or tortious acts.
 Exercise
• Limited-liability companies, or corporations,
unlike partnerships, are formed not simply
by____entered into between their first
members; they must also be_____at a public
office or _____designated by law or otherwise
obtain official acknowledgement of their
existence.
 Key
• A company is a legal entity, allowed by
legislation, which permits a group of people,
as shareholders, to create an organization,
which can then focus on pursuing set
objectives. It is empowered with legal rights
which are usually only reserved for
individuals, such as the right to sue and be
sued, own property, hire emoloyees or loan
and borrow money.
 Key
• The primary advantage of a company structure
is that it provides the shareholders with a right
to participate in the dividends, a proportionate
distribution of profits made in the form of a
money payment to shareholders, without any
personal liability.
 Key
• There are various forms of legal business
entities ranging from the sole trader, who
alone bears the risk and responsibility of
running a business, taking the profits, but as
such not forming any association in law and
thus not regulated by special rules of law, to
the registered company with limited liability
and to multinational corporations.
 Key
• In a partnership, members ‘associate’,
forming collectively an association in which
they all participate in management and sharing
profits, bearing the liability for the firm’s
debts and being sued jointly and severally in
relation to the firm’s contracts or tortious acts.
 Key
• Limited-liability companies, or corporations,
unlike partnerships, are formed not simply by
agreements entered into between their first
members; they must also be registered at a
public office or court designated by law or
otherwise obtain official acknowledgement of
their existence.
 Roles in company management
Match the roles with definitions: auditor, company
secretary, director, managing director, shareholder
• Company director responsible for the day-to-
day operation of the company
• Person elected by the shareholders to manage
the company and decide its general policy
• Person appointed by the company to examine
the company’s accounts and to report to the
shareholders annually on the accounts
 Match the roles with definitions: auditor, company
secretary, director, managing director, shareholder

• Member of the company by virtue of an

acquisition of shares in a company
• Company’s chief administrative officer, whose
responsibilities include accounting and finance
duties, personnel administration and
compliance with employment legislation
security of documentation, insurance and
intellectual property rights
 Which documents are required for
company formation?
• DBA filing
• Articles of incorporation
• Stock ledger
• General partnership agreement
• Stock certificates
• IRS & State S Corporation election
• Bylaws
• Organisational board resolutions
 Which type of business association was the
lawyer discussing with her client?
US entities Documents required for
formation and operation
Sole proprietorship DBA filing

General partnership General Partnership

Agreement, local filings if
partnership holds real
estate
Limited partnership Limited Partnership
Certificate, Limited
 Which type of business association was the
lawyer discussing with her client?
US entities Documents required for
formation and operation
C corporation Articles of Incorporation,
Bylaws, Organisational
Bord Resolutions, Stock
Certificates, Stock Ledger
S corporation Articles of Incorporation,
Bylaws, Organisational
Board Resolutions, Stock
Certificates, Stock Ledger,
IRS&State S corporation
 Company types
• Private limited company (Ltd)
• General partnership
• Public limited company (PLC)
• Limited partnership
• Sole proprietorship
Private limited company, general partnership, public limited
company, limited partnership, sole proprietorship

Liability of owners Capital contributions Management

Unlimited personal Capital needed is Business is managed by

liability for the contributed by sole the sole proprietor
obligations of the proprietor
business

Generally no personal No minimum share Managed through its

liability of the members capital requirement. managing director or the
for obligations of the Capital can be raised board of directors acting
business through the issuance of as a whole
shares to members or
through a guarantee
Private limited company, general partnership, public limited
company, limited partnership, sole proprietorship

Liability of owners Capital contributions Management

No personal liability; Minimum share capital Managed by the board

liability limited to of L50,000 of directors;
shareholder Raised through issuance shareholders have no
contributions of shares to the public power to participate in
and/or members management
Unlimited personal Partners contribute Partners have equal
liability of general money or services to the management rights,
partners for the partnership; share profits unless they agree
obligations of the and losses otherwise
business
Private limited company, general partnership, public limited
company, limited partnership, sole proprietorship

Liability of Capital Management

owners contribution
Unlimited General and The general
personal liability limited partners partner manages
of the general contribute money the business,
partners for the or services to the subject to any
obligations of limited limitations of the
the business; partnership; they Limited
limited partners share profits and Partnership
generally have losses Agreement
no personal
liability
 Choose the correct word or phrase:
• 1. The constitution of a company
comprises/consists/contains of two documents.
• 2. The memorandum of association states
/provides for / sets up the objects of the
company and details its authorised capital.
• 3. The articles of association contain
arguments / provisions / directives for the
internal management of a company
 Choose the correct word or phrase
• 4. The company is governed by the board of
directors, whilst the day-to-day management is
delegated upon / to / for the managing director.
• 5. In some companies, the articles of
association make /give / allow provision for
rotation of directors, whereby only a certain
portion of the bord must retire and present
itself for re-election before the AGM.
 Choose the correct word or phrase
• 6. Many small shareholders do not bother to
attend shareholders’ meetings and will often
receive proxy circulars from the board,
seeking authorisation to vote on the basis of /
in respect of / on behalf of the shareholder.
 Complete the following using: in terms of, in
the course of, by way of, in response to
• 1. _____choosing the name of the company, a
number of matters must be considered.
• 2. Confidential information
acquired_____one’s directorship shall not be
used for personal advantage.
• 3. I would advise that members of your project
group formalise your relationship ____a
partnership agreement, incorporation or
limited liability company.
 Complete the following using: in terms of, in
the course of, by way of, in response to
• 4. This form of corporation is often considered
to be the most flexible body ____corporate
structure.
• 5. Our company formations expert is unable to
provide advice____your query, as there are a
number of factors which need to be taken into
account which do not relate directly to his area
of expertise.
 Complete the following using: in terms of, in
the course of, by way of, in response to
• 6. The relationship between management and
boards of directors at US multinational
companies has been changed dramatically
through a series of corporate governance
initiatives begun_____corporate scandals, the
Sarbanes-Oxley Act and other requirements.
Complete the following using: in terms of, in
the course of, by way of, in response to
• 7. Shareholders and other investors in
corporations tend to view corporate
governance_____the corporation’s increasing
value over time.
• 8. Regular and extraordinary board meetings
may be held by telephone, video-telephone
and_____written resolutions.
 Which of the following can go the
verb to file?
• An action, an appeal, an amendment, a breach,
a brief, charges, a claim, a complaint, a debt, a
defence, a dispute, a document, a fee, an
injunction, a motion, provisions, a suit
 To file
• To send a document to court
• To register something officially
• Podnijeti (prijavu, tužbu, zahtjev), podići
(optužnicu), dostaviti, evidentirati, pokrenuti
postupak, urudžbirati, arhivirati
 Key
• An action, an appeal, an amendment, a brief,
charges, an injunction, a motion, a suit